Martin v. State

• Decision Date: 04 November 1981
• Docket Number: Nos. 66173,No. 2,66345,s. 66173,2
• Parties: Michael Scott MARTIN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 391

623 S.W.2d 391

Michael Scott MARTIN, Appellant, v. The STATE of Texas, Appellee.

Nos. 66173, 66345.

Court of Criminal Appeals of Texas, Panel No. 2.

Nov. 4, 1981.

Ted Redington, Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty., Gregory S. Long, Bradley K. Lollar and Stewart C. Robinson, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, CLINTON and TEAGUE, JJ.

OPINION

CLINTON, Judge.

These are two appeals which we will treat together: Cause No. 66,173 is from a revocation probation proceeding and Cause No. 66,345 is from a conviction for aggravated robbery. The causes are related in that papers and proceedings in the aggravated robbery trial before a jury were "judicially noticed" by the court below in revoking probation in the first cause-utilizing the rule judicially created by the Barrientez-Bradley line of cases ¹-and also because innovative appellate counsel now challenges the taking of "judicial notice" on a ground that he intertwines with some of the grounds of error in the appeal from the aggravated robbery conviction. Thus, he complains that appellant was not afforded effective assistance of counsel in the aggravated robbery trial and, therefore, the court erred in judicially noticing it to revoke probation. We take up that matter first, then other grounds of error in the second case and, ultimately, will affirm the judgments in both causes.

To be noted at the outset are germane common constituents in the trial and revocation proceeding, to-wit: the trial court, the trial judge, lead counsel for the State, defense attorneys-only the court reporters are different persons. ² Thus, we need not grapple with the legal problems that have been troublesome in some of our causes, e. g., Bradley II.

Appellant, upon recommendation of a jury, had been granted probation by order of the court July 9, 1979. Adult Probation Officer Waylan Vernon was present at the time and discussed with appellant the terms and conditions of probation, including "Condition A"-that appellant "commit no offense against the laws of this ... State ..." Nine days thereafter Vernon filed a report of probation violation that appellant had violated Condition A in that on or about July 14, 1979, appellant had committed the offense of aggravated robbery in Dallas County. He testified there was no other reason for his making, filing and presenting the report. The formal motion to revoke filed by the prosecuting attorney alleges in terms only the same offense, as does the indictment returned contemporaneously with the motion.

Jury trial on the indictment commenced August 14, 1979 and concluded August 17, 1979; an amended motion for new trial was thereafter heard and overruled, and the trial court sentenced according to assessment of punishment at confinement for life. That done, the judge called up the State's motion to revoke, the reading was waived and, appellant having stood mute, the court entered a plea of not true. The court was requested by the prosecuting attorney, and responded that it would, take judicial notice of its official court records in the cause in which probation had been granted. ³ Next, the probation officer testified as indicated ante, and then came the matter of "judicial notice" which we set out in the margin. ⁴

Appellant does not now fault his trial attorney for voicing, "No objection;" indeed, he acknowledges that "it is not improper to take judicial notice of previous proceedings to determine if probation should be revoked." Ordinarily, then, without a proper objection nothing would be presented for review. See, e. g., Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974); cf. Concurring Opinion in O'Hern v. State, 527 S.W.2d 568, 570 (Tex.Cr.App.1975). However, his novel contention is that such prior proceedings should not be thus utilized when representation by trial counsel during their course is ineffective. Appellant cites no authority to support the proposition.

For its part, the State asserts that flawed assistance of counsel "would not per se render all the evidence admitted in the aggravated robbery proceedings inadmissible ... (in) ... consideration for revocation," pointing to the lesser burden of proof in the latter proceeding. ⁵ Perhaps anticipating the position taken by the State, his first ground of error in our Cause No. 66,345 is that the evidence is insufficient to support the judgment of conviction of aggravated robbery. Yet, that sufficient, unobjectionable, probative evidence before the jury later becomes available for consideration by the court in a probation revocation proceeding seems to be the teaching of both Bradley II and McDonald, supra, especially since the revocation hearing in each followed a trial in which the jury was unable to agree on a verdict. That is, the evidence did not convince beyond a reasonable doubt.

But, unless the body of evidence before the jury is so rife with mistakenly admitted testimony without objection from defense counsel, we fail to comprehend how the matter of assistance of counsel is implicated. See, e. g., Ewing v. State, 549 S.W.2d 392, 395 (Tex.Cr.App.1977); Long v. State, 502 S.W.2d 139, 141 (Tex.Cr.App.1973) and related cases collected under "Failure to Object to Incompetent Evidence," "Assistance of Counsel," 12 St. Mary's Law Journal 1, at 27-31, when on motion to revoke the court comes to consider whether what was before the jury amounts to a preponderance of the evidence that an offense was committed in violation of a condition of probation. Moreover, when the probationer continues to be represented by the same trial lawyer, as here, the likelihood making the court aware of a claim that the evidence being considered is somehow tainted by ineffectiveness of counsel is remote indeed. For, as appellant himself acknowledges, unrevealed "strategies of trial counsel may ... explain actions or inactions," about which complaint was never made to the court as the motion to revoke was being heard. ⁶ It is in these lights that we turn first to examine some of the evidence adduced and then to see if it is attenuated by the alleged failings of trial counsel.

The victim of the alleged robbery, a Garland service station attendant, testified to the facts of the offense committed by one brandishing and striking him with a handgun, whom he identified in court as appellant. The robber acquired keys to the victim's car and fled the scene; the automobile was soon abandoned near the Willows Apartments where appellant had previously resided. Appellant mounted a defense with fifteen witnesses, including himself. He denied committing aggravated robbery and presented alibi testimony to the effect that at the time he was at his residence at Lake Worth in Tarrant County with two housemates who confirmed that. On rebuttal, Garland Police Officer Dennis Wheatley, who coincidentally had investigated the earlier 1979 offense in our Cause No. 66,173 and knew appellant on sight, testified that about thirty minutes after the robbery he was on his way to the station house and saw appellant driving an automobile (which he would later see again parked next to the Lake Worth residence). At the station Wheatley heard of the robbery and a description of the suspect: he assembled a photographic array of pictures of five males, including appellant. The next day the victim recognized appellant and picked his picture from the array.

Appellant charges his trial counsel with five particularized failings, ⁷ but just two relate to the state of the evidence, and then only remotely: impeaching appellant with details of the prior offense and bolstering identification testimony.

On direct examination his attorney had brought out the facts that appellant had not denied committing the offense, but pleaded guilty to a jury that assessed punishment at four years, and recommended probation, and a fine; counsel then made the point through interrogation that appellant had pleaded not guilty to the aggravated robbery charge then on trial and promptly had him assert that he did not rob the service station attendant. The question by the prosecutor on crossexamination: "Tell the Jury what you did with an aggravated assault with a deadly weapon." The answer that follows consumes almost two full pages of the record, and then there was more colloquy about it-all without objection on the ground now advanced by appellant. Along the way appellant managed to reiterate that he had been convicted and "had every intention of living up to my probation." Patently, counsel for appellant had thought to gain some advantage from the stance of his client in the prior case and, having sought to do so, believed it would be considered bad form by the jury to keep the other side from going deeper into what he himself had started-his client was, in a phrase, "making a clean breast." There is no ineffectiveness in that; the risk that revelation of details of the prior offense might damage credibility was calculated, and we cannot find that the defensive theory and testimony were harmed by the exploration of details of the prior aggravated assault. ⁸

As to the identification procedure, not only did counsel make no objection when the State briefly questioned the victim about his selecting appellant's picture, but also he interrogated at length about it. He brought out, among others weaknesses, that the victim first failed to identify anyone from the photographs, but after they were reshuffled a selection was made. His cross-examination of Wheatley was also detailed in this respect, and it was counsel for appellant who in front of the jury obtained from Wheatley the five photographs, had him identify them and offered them in evidence. All this was no doubt to permit counsel to argue, as he did, that Officer Wheatley was more interested in getting a quick identification to confirm his suspicion the appellant committed the offense than he was in...